Citation Nr: 21067870 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-53 438 DATE: November 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD which conforms to the diagnostic criteria in Diagnostic and Statistical Manual of Mental Health Disorders, Fifth Edition (DSM-5). 2. The weight of competent and credible is against finding that the Veteran's acquired psychiatric disorder, to include depressive disorder, manifested in service, and is not otherwise etiologically related to an in-service injury, event, or disease CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.125 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from July 1981 to July 2001 with seven days temporary duty in Southwest Asia in February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in November 2018 and February 2021 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. § §§ 3.303(b), 3.309. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). As an initial matter, the Board acknowledges that VA, effective August 4, 2014, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran's claim was initially certified to the Board after August 4, 2014, a diagnosis of PTSD will be determined based on the criteria in the DSM-5. See 38 C.F.R. § 4.125(a) (2019). The Board notes that all of the VA mental health examinations were performed after August 2014. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that service connection is warranted for his acquired psychiatric disorder, to include PTSD. The Veteran contends that PTSD is related to service and depressive disorder is caused or aggravated by his service-connected back disability. Service personnel record show that the Veteran primarily served as a tactical satellite communications system installer and maintainer with one tour of duty as a recruiter. While stationed in Germany, he was assigned temporary duty from February 17-23, 1993 in Saudi Arabia. His evaluations for the period December 1992 to December 1993 and an Army Commendation Medal for this period are silent for any mention of actions or events during this temporary duty. All subsequent evaluations and commendations show excellent performance of duty. The Veteran's service treatment records (STRs) are associated with the claims file. The Veteran did not report mental health symptoms while on active duty. He explicitly denied depression or excessive worry and nervous trouble of any sort on self-completed report of medical history forms in April 1991 and October 1996. The Veteran was determined to have no psychiatric abnormalities at his March 2001 separation examination. On the corresponding self-completed report of medical history form, the Veteran explicitly denied ever experiencing trouble sleeping, depression or excessive worry, and nervous trouble of any sort. During June 2005 medical treatment, the Veteran exhibited no psychological symptoms. During March 2012 treatment, he denied anxiety and depression, and reported a normal enjoyment of activities. The Veteran reported that he was feeling "very good" overall during December 2014 medical treatment. The Veteran first reported depression, anxiety, and stress during November 2015 medical treatment. He stated that he had experienced depressed mood for the past two years. The Veteran was diagnosed with depression in January 2016. During March 2016 treatment, the Veteran reported that he made an appointment through the VA for mental health because of depression and being upset by problems at home or work. The appointment was "not deployment related." The Veteran submitted a June 2016 private opinion from Dr. M.K.N. which reflects that the Veteran reported an incident in which he underwent a sniper attack in Kuwait. The Veteran reported depression since 2006. The private psychologist determined that the Veteran had PTSD secondary to the sniper attack and major depression secondary to his low back disability. The Veteran filed a claim for entitlement to service connection for PTSD in August 2016, stating that he developed a fear of hostile terrorist activity during his deployment in Kuwait. He noted that he had deployed in support of Operation Desert Storm and lived under threatening conditions. He was present in Saudi Arabia for seven days in 1993; Desert Storm combat action ended in 1991 although a threat of isolated hostile action was possible. The Veteran attended a VA examination in December 2016. He stated that his mother and brother passed away in 2015 and he began feeling depressed around December 2015. When asked about his deployment to Kuwait, the Veteran explained that he was only there seven days and then had to leave because of a family emergency but that he had not wanted to go in the first place. He described having to run to a bunker during a false alarm of a SCUD missile attack. He did not report experiencing any terrorist sniper attacks. Following an examination and review of the claims file, the VA psychologist determined that the Veteran did not have PTSD. The examiner explained that the Veteran likely had mild adjustment problems and there was no treatment for, reports of or historical evidence of mental health difficulties throughout the Veteran's life. The examiner concluded that the Veteran's mental health disability was less likely than not related to service. She explained that the Veteran did not report any mental health symptoms until he had a particularly difficult family year in 2015. She also gave "little weight" to the June 2016 private report by the veteran's private disability evaluator because it had "erroneous details and little relevance to the presentation" the Veteran gave during the examination. The Veteran had a negative depression screen during April 2017 and May 2017 VA treatment. During May 2017 VA mental health treatment, the Veteran reported family stressors. The Veteran submitted another private opinion from Dr. M.K.N. in December 2018 which stated that the Veteran had PTSD secondary to traumatic military events and depression aggravated by his service-connected chronic back pain. In April 2019 correspondence, the Veteran's spouse reported that the Veteran's chronic pain and resulting limitations from his back disability caused the Veteran to be depressed. During July 2019 VA mental health treatment, the Veteran reported that his stressor was work-related. The treating psychiatrist stated that the Veteran had mild Major Depressive Disorder (MDD). Less than a month later, the same physician stated that while the Veteran had some minor depressive symptoms, he did not meet the criteria for MDD. The Veteran attended another VA examination in October 2019. He again reported having to run to a bunker during a false alarm of a SCUD attack once during his seven-day period in Kuwait but did not mention any incoming sniper attacks. Following an examination and review of the claims file, the examiner determined that the Veteran met the DSM-5 criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood but did not have PTSD. She stated that the objective evidence supported an initial onset within the last ten years, which was well after his separation from service and the onset of his back disability. The examiner determined that the Veteran's mental health disability was less likely than not caused by service or a service-connected disability because the objective evidence and the Veteran's self-report were "not consistent with the presence of a mental health condition incurred during service, secondary to service-connected condition, or aggravated beyond its natural progression by a service-connected condition." She reiterated that the Veteran did not report any mental health symptoms in service and the objective medical evidence revealed mental health symptoms coinciding with family and work stressors. She also commented on the private opinion from Dr. M.K.N., stating that there were "remarkable inconsistencies between those findings, VA mental health treatment records, and the [Veteran's] presentation and self-report" during the examination. Furthermore, she stated that the fee-based examiner did not sufficiently document a rationale for the opinion that the Veteran's depression was directly related to low back pain and neglected to document or address "numerous psychosocial stressors repeatedly listed by his VA treatment providers as relevant factors." The VA examiner also objected to the diagnosis of MDD, explaining that, "this diagnosis, notably an outlier in comparison to other VA mental health records since he initiated treatment in 2016, is also opined to be inaccurate, based on DSM-5 criteria. The [Veteran] does not endorse current or historical depressed mood lasting the majority of the day for more days than not for at least two weeks OR loss of interest in all or nearly all activities most of the day for nearly every day for at least two weeks, either of which are required to diagnose MDD." She noted that, "remarkably, the prescribing clinician who gave this erroneous diagnosis without adequate documentation of [symptoms] supporting such a diagnosis" in July 2019, went on to state that the Veteran did not meet the criteria for MDD during treatment less than a month later. Another VA opinion was obtained in September 2021. The examiner determined that the Veteran's service-connected disabilities did not cause or aggravate the Veteran's mental health disorder. She explained that the Veteran was repeatedly questioned in the prior VA examinations regarding the onset and etiology of his mild depressive and anxiety symptoms and he repeatedly attributed the symptoms to familial and work stressors. She went on to explain that the record did not support a link between the Veteran's back disability and his mental health symptoms. Given the significant inconsistencies between the private opinions by Dr. M.K.N. and the VA psychologists and VA treatment records, she did not afford Dr. M.K.N.'s opinions clinical weight. VA treatment records reflect continued mental health treatment from 2015 to the present, with corresponding family and work-related reported stressors. After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against finding that service connection for an acquired psychiatric disorder is warranted. The Board concludes that service connection is not warranted as the Veteran's current mental health disorder is not related to service. While the Veteran's and the associated lay statements of record contend that his depression and anxiety are related to his service and are aggravated by his back disability, the Veteran and associated lay statements are not competent to provide a nexus opinion in this case. The record does not reflect that the Veteran or his spouse have the requisite training or expertise to offer a medical opinion diagnosing an acquired psychiatric disorder and linking his current symptoms to an in-service event or service-connected disability and as such they are not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is also not competent to diagnosis himself with PTSD. As explained above, service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). The Board finds that the VA medical evidence is more probative and more credible than the lay opinions of record. Based on the evidence of record, the most probative evidence of record finds that the Veteran's current mental health disorder is not related to service, to include his service in Kuwait. The Board has considered the extensive medical opinions of record and finds that the VA opinions in December 2016, October 2019, and September 2021 are entitled to the most probative weight. All three VA examiners clearly reviewed the claims file and interviewed the Veteran. All three opinions attribute the Veteran's mental health symptoms to familial and work-related stressors that began around 2015. The Veteran did not report any sniper attack during the December 2016 and October 2019 examinations and all of the VA examiners concluded that the Veteran did not have PTSD. He also did not attribute his depressive symptoms to his service-connected disabilities when interviewed. The VA examiners' conclusions are supported by the treatment records in the claims file. The Board notes that there is conflicting evidence of record. While the Board has considered the June 2016 and December 2018 correspondence; the disability evaluator's opinions are based on the inaccurate factual premise that the Veteran experienced a sniper attack while in Kuwait during Desert Storm. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning); Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that a physician's opinion based on an inaccurate factual premise has no probative value). Furthermore, the disability evaluator did not adequately address or explain why his conclusions so starkly contradicted the treatment records or the December 2016 VA examination report. Accordingly, the Board assigns little probative value to the private opinions. The Veteran's diagnosed psychiatric disorder is not a "chronic" disease under the provisions of 38 C.F.R. § 3.309, and there is no evidence that he has been diagnosed with a psychosis. As a result, the provisions of 38 C.F.R. § 3.303(b) are not applicable. The Board finds that service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is not warranted. Since the weight of competent and credible evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.